Friday, February 10, 2017

I get it that Kellyanne Conway shouldn't be using her position as a spokeswoman for the Trump administration standing on WHite House property cannot be pushing Ivanka's business. This is the sort of thing that people always questioned about electing a businessman with his own businesses and now we have members of the administration pushing the President's daughter's business. I understand why that is a violation of ethics laws.

However, for all those people upset about Conway's little plug, I didn't see those same people criticizing Obama going around to all those green energy businesses and pushing them while funneling stimulus funds to those businesses. At least Conway wasn't channeling taxpayer funds to selected businesses. I would prefer if presidents didn't push private businesses and didn't interfere in the marketplace. I didn't like Trump making deals with Carrier, but he's not the only president playing the crony capitalism card. As Ben Shapiro points out that Obama was also using the power of the presidency to brag about how his policies were creating jobs.

I'm old enough to remember 2009, when Barack Obama singled out another blue collar company, Caterpillar, to use as his example of bringing jobs back to America. In February 2009, Obama visited Caterpillar, which was set to cut jobs thanks to the continuing manufacturing drain that has occurred continuously over the past several decades due largely to technological gains. Obama bragged, “Yesterday, Jim, the head of Caterpillar, said that if Congress passes our plan, this company will be able to rehire some of the folks who were just laid off. And that's a story I'm confident will be repeated at companies across the country -- companies that are currently struggling to borrow money selling their products, struggling to make payroll, but could find themselves in a different position when we start implementing the plan.” Obama used Caterpillar to pitch his massive stimulus boondoggle, including spending on infrastructure.

Then, in 2013, Obama bragged that he and he alone had achieved wonders by working with Caterpillar: “Our first priority is making America a magnet for new jobs and manufacturing. After shedding jobs for more than 10 years, our manufacturers have added about 500,000 jobs over the past three. Caterpillar is bringing jobs back from Japan. Ford is bringing jobs back from Mexico. And this year, Apple will start making Macs in America again…There are things we can do, right now, to accelerate this trend.” Obama then called for specific use of Department of Defense contracts to push American manufacturing.

Conservatives rightly pushed back against all of this. They said that Obama’s stimulus spending was a waste of money, that it represented the worst of crony capitalism, that jobs had indeed continued to drain overseas despite Obama’s attempt at indirect redistribution.

But change out the names, and now everything’s fine. What’s more, stop asking questions of our beloved president! Why must we always look a gift horse in the mouth? Why can’t we just enjoy Trump’s triumphs?

Well, because it’s not a triumph for America when bad policy sets bad precedent. And it’s not a triumph for conservatives when such policy is integrated into the Republican Party playbook. Stamping a big T where a big O used to be doesn’t make crappy policy decent.

Trump on trade and his approach toward business is not anything that conservatives should endorse.

The Washington Examiner points out that Michelle Obama bragged about using her custom of dress designers to boost their businesses based on her personal affection for them. The law aimed at preventing those in office benefiting or their friends or relatives from their positions.

In an interview with NPR, law professor Kathleen Clark explained, "The broader rule is that government employees shouldn't use public office for private gain. They shouldn't use it for their own personal private gain or for somebody else's private gain."

Fair enough.

Flashback to November 2016.

In an interview with Vogue, First Lady Michelle Obama explicitly acknowledged that one of the questions she considered when choosing fashion designers was, "Can I give them a boost?"

According to Vogue, Obama remarked, "There are definitely designers that I love, people I love to work with. And who they are as people matters. Are they good people? Do they treat their staff well? Do they treat my staff well? Are they young? Can I give them a boost?"

The implication here, of course, is that Michelle Obama deliberately exploited her position as first lady to "boost" the sales of private businesses.

Consider for instance Michelle Obama's much-celebrated decision to repeatedly sport clothing from J. Crew over the course of her time in the White House. In light of her comments to Vogue, the fact that J. Crew CEO Mickey Drexler donated $35,000 to the Obama Victory Fund in 2012, according to FEC records, and the fact that J. Crew Creative Director Jenna Lyons (also an Obama donor) explicitly credited the first lady with a "huge lift" in sales, ethics crusaders targeting Conway should be equally upset with the actions of Obama.

No, Obama did not go on television and urge Americans to buy the products of specific designers. She didn't have to. Her impact on fashion designers' bottom lines was well-documented. According to the Huffington Post, a 2010 study by the Harvard Business Review found that "Obama's wardrobe created $2.7 billion in value for 29 brands worn over the course of 189 public appearances from November 2008 to December 2009."

Her ability to create sales spikes was a widely-accepted fact.

In this context, Obama's desire to "boost" designers seems to raise the same ethical questions as Conway's statements.

It is important to note one key distinction between the two women - the statute in question applies only to federal employees, so (depending on interpretations of the first lady's legal status) Obama's actions did not fall under its purview. But the central ethical question of whether it is appropriate for political figures to exploit their offices in an effort to benefit private businesses remains.

First Ladies have been picking designers they want to highlight since Jackie Kennedy. There is nothing wrong with that. If those designers benefit because of the patronage of the First Lady and her support of their work, who cares except maybe the designers who weren't so favored? But in essence, that's not so very different from Kellyanne Conway touting Ivanka's stuff except that the person she's touting is the daughter of the president. But no one is alleging that Ivanka did something unethical here. Conway spoke out when she shouldn't have and now she's learned what she can't do. So maybe we can all calm down about Conway's remarks. She can apologize and we can all just relax.

If Trump's travel ban goes up to the Supreme Court and Gorsuch had already been confirmed, Ilya Shapiro points out that Neil Gorsuch is not a sure thing to uphold the the order of the president who nominated him.

Regardless of what ultimately happens to President Trump's executive order on immigration — Thursday night's ruling to maintain the restraining order blocking the ban obviously isn't the end — an irony of the political debate over the parallel Supreme Court nomination is that Neil Gorsuch would be more likely to rule against the government than Merrick Garland would've been.

Let me explain. Garland was a so-called "moderate" liberal, who had a long career as a prosecutor and Justice Department official before becoming a judge. What this translates to on the bench is that he's extremely solicitous of assertions of federal power. Whether environmental regulation or labor law, law enforcement interests or immigration prerogatives, he's a solid vote for the government. More solid, I should add, than someone who's more ideological, like Justice Sonia Sotomayor or a Goodwin Liu (a California supreme court justice whose appointment to the 9th Circuit Republicans had blocked).

Gorsuch, on the other hand, has led a campaign against judicial over-deference to the executive.

Shapiro goes on to summarize some rulings Gorsuch made going against an over-assertion of governmental power. He concludes,

I'm not going to do justice here to the full debate over administrative law (Chevron, etc.), but suffice it to say that in this pen-and-phone era, it's refreshing to see a judge recognize the lack of accountability in a system driven by bureaucrats rather than legislators. It's not something one would expect from a "judicial restraint" conservative, and differentiates Gorsuch from Garland (and from the late Justice Antonin Scalia, for that matter).

Though some people are positing that, if the an appeal from the 9th Circuit reached the Supreme Court before Gorsuch is confirmed, that the Court could tie 4-4. However, I wouldn't be so sure that Anthony Kennedy would rule in favor of Trump. Andy McCarthy looks at how Kennedy ruled in a previous case and concludes that Kennedy's vote is not a sure thing for the Trump administration.

As anyone who was measuring the Atlanta Falcons for Super Bowl rings late in the third quarter will tell you, the prognostication game is an uncertain business. Still, you may get my drift if you think about the legal theory supporting Trump’s order, and then consider Kennedy’s majority opinion in favor of constitutional habeas corpus rights for alien enemy combatants in the controversial 2008 case of Boumediene v. Bush.

The main principle underlying Trump’s executive order is that the political branches of the federal government have plenary authority over border security, particularly as it pertains to aliens who could pose a threat. There is little or no legitimate role for the courts. The Supreme Court has long recognized that “it is undoubtedly within the power of the Federal Government to exclude aliens from the country,” and that even American citizens and their belongings may be searched without judicial warrants due to the sovereign imperative of “national self-protection.”

....Boumediene involved alien enemy combatants who were captured and held outside the United States, at the Guantanamo Bay naval base that is technically sovereign Cuban territory. Unlike the aliens affected by Trump’s order, the vast majority of whom presumably mean the United States no harm (and many of whom had been given legal permission to enter prior to the order), the Boumediene aliens had no contacts with our country except to make war on us.

They also had no constitutional right to judicial review of the commander-in-chief’s wartime decision to detain them as enemy combatants. There was Supreme Court precedent explaining how detrimental to national security it would be to empower the enemy to use judicial proceedings to second-guess and undermine wartime command decisions. And Congress, just two years earlier, had — at the Court’s request — enacted a law (the Military Commissions Act of 2006) that addressed the detention of combatants. In that law, Congress, using its constitutional authority to control the jurisdiction of the federal courts, directed them not to entertain any habeas claims by the alien combatants (although it did grant a narrower path to judicial review).

Justice Kennedy nevertheless joined the Court’s left-wing bloc to rule against the Bush administration and Congress’s clear statute. (The bloc then included Justices Souter and Stevens, later replaced by Justices Sotomayor and Kagan.) Kennedy wrote the majority opinion and, as I observed at the time, turned on its head the venerable doctrine of separation of powers that undergirds our constitutional system.

Previously, separation of powers meant we are a democracy, not a judicial oligarchy. That is, if a particular subject matter is committed by the Constitution to the political branches of government that are accountable to the people, then the judiciary – which is not similarly accountable – must respect this limitation on its authority and refrain from intruding. Kennedy, however, held that “the exercise of [executive] powers is vindicated, not eroded, when confirmed by the Judicial Branch.” By his lights, there is no subject insulated from judicial review: It is the judiciary, not the Constitution, that ultimately determines the legitimacy of government action.

So don't assume that he'd vote to uphold Trump's order.

Regardless of how deeply rooted is the constitutional principle that border security is a plenary power of the political branches, I am not convinced that Justice Kennedy will be much impressed. He is hostile to limitations on judicial power and skeptical, to say the least, that the distinction between citizens and aliens is of much consequence.

And if Gorsuch is also iffy, Trump fans shouldn't assume that the 9th Circuit's ruling today will be overruled as so many of the 9th Circuit's rulings that reach the Supreme Court hears.

Charles Krauthammer has some good advice for the Trump administration, but I don't expect Trump to take it.

I do believe that the president is completely within his rights in issuing an order that is lawful and legal. Under normal circumstances, I think he’d be vindicated by the Supreme Court. I think Judge Napolitano may be right, that there will be at least one liberal on the court who will support him because I think it is pretty obvious, and it would embarrassing if the liberals on the court all unanimously opposed it. But as a pure political, tactical issue, I do think that you can let this thing go. There are two parts. There’s the vetting, and there’s the moratorium. The moratorium is incidental and temporary. You let that go, you go back to the district court, it’s dragged out — the moratorium would expire anyway in 90 days — you do the vetting, you get Giuliani or somebody else to put together a program and have it done within the 90 days, and then you move on.

I think it is a matter of personal pride. The guy’s a winner. He doesn’t like losing, but I think it’s a losing proposition to run after this, unless you think you can win with the supremes. You may or may not, if you want too roll the dice, but otherwise, let it go, escape from it, you’re not getting anywhere on this, you’ve got a huge agenda, you’re on a roll — don’t mess it up.

I'm not sure what an improved vetting would look like. I haven't seen anyone discuss what that means.

Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.”

While the 9th Circuit did address this at great length, focusing instead on due-process arguments, it did accept the basic validity of the form of the states’ argument. “The States’ claims raise serious allegations and present significant constitutional questions,” wrote the court.

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

There are sound policy reasons for ignoring campaign statements or promises to shed light on subsequent official action. For one, campaign promises are often insincere, designed to appeal to voters. Indeed, they are explicitly instrumental, and their goal is not policy outputs, but election. Moreover, implemented laws or policies are often substantially different from promises, as is the case here.

Even the use of legislative/administrative history, in its most expansive form, looks only at the actual process – and not the personal background of the legislators, let alone before they took office. As the 9th Circuit itself put it in a discrimination case, “statements by decisionmakers unrelated to the decisional process itself” do not prove a discriminatory motive. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1138 (9th Cir. 2004).

The 9th Circuit’s ruling Thursday throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.

The Supreme Court has long held that facially neutral laws and regulations may be invalidated if the true purpose behind them is to discriminate on the basis of race, ethnicity, religion, or some other suspect classification. If facially neutral policies are exempt from scrutiny for discriminatory motive, then a wide range of prejudicial policies would have to be upheld. For example, many Jim Crow-era policies targeting African-Americans were facially neutral, including poll taxes and literacy tests intended to keep blacks from voting.

In determining whether discrimination was the motivation behind the challenged action, the Supreme Court requires judges to make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “[t]he historical background of the decision” and “[t]he specific sequence of events leading up to the challenged decision.”

Despite Eugene Kontorovich’s contrary view, there is no reason to exempt campaign statements from this kind of inquiry. When a policy is a direct outgrowth of a major theme of a candidate’s campaign, as is surely true here, campaign statements are clearly part of “the historical background of the decision” and “”[t]he specific sequence of events leading up to [it].” As Trump himself likes to emphasize, campaign promises are often an important indication of political leaders’ intentions. For courts to ignore that would be to close judicial eyes to obvious political realities.

That does not mean that any Trump administration policy that seems to harm Muslims should automatically be ruled unconstitutional. A policy less clearly linked to his bigoted statements and backed by a stronger security justification than the extremely weak one here, would be more likely to be upheld. As the Ninth Circuit notes, the administration has presented only very flimsy evidence that its order is backed by legitimate security needs, which is one of the reasons why it refused to lift the trial court’s order staying implementation. Things might be different in a case where the government could more plausibly point to a genuine nondiscriminatory rationale for its policies.

It is true, as Eugene notes, that taking account of campaign statements in cases like this might “chill” some candidates’ bigoted speech. But I don’t see this as a weighty objection. Any inquiry into the discriminatory motives of government officials might potentially chill their speech, because speech indicating a discriminatory motivation is inevitably going to be relevant evidence in such a case. It is both unjust and (in most cases) unconstitutional to chill speech by threatening the lives, liberty, or property of speakers. The situation is very different when the only adverse consequence they suffer is limitations on their ability to wield the coercive powers of government while serving in public office. If the powers of officials with a history of bigoted statements are subject to tighter constraints at the margin, that strikes me as a feature rather than a bug.

The opinion also hints in several places that a more modest Justice Department litigating position, and more editing of the executive order by lawyers, might have led to a partly different outcome.

For instance, the 9th Circuit has not decided that the state standing and due process theories are enough to actually sustain the full breadth of the injunction, but concludes that “the Government has not proposed a workable alternative form of the TRO” or one that protects everybody with “viable due process claims.” This suggests that it might have treated a more modest DOJ challenge differently.

Also, the opinion refuses to treat the executive order as having been narrowed by the later interpretation of the White House Counsel, noting both “the Government’s shifting interpretations of the Executive Order” and the fact that “the White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” This suggests that if the White House Counsel wants the order to be narrowed, he needs to do it by getting the president to issue an amended order.

3. Obviously this is not the end of the litigation — there may well be a petition for en banc review to the 9th Circuit or for certiorari to the Supreme Court. And either way, there will likely be many more stages of this litigation.

What will happen? My suspicion is that the government’s ability to prevail will depend in part on whether it is willing to modify its litigating position, or to formally modify the order, in response to its biggest vulnerabilities.

As the WSJ writes, the incompetence demonstrated by the Trump administration in designing the original executive order and their inability to put up a good defense of it have not only embarrassed themselves, but also weakened the presidency.

President Trump’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy....

The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach....

The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.

Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn. (Then they, and not the states, should sue.)

But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government.

But the reach of that 5-4 decision was at least cabined to habeas corpus, not a general license to extend constitutional rights willy-nilly to noncitizens. With the Boumediene precedent as a weapon, the Ninth Circuit decision jeopardizes core executive powers over national security. Unelected judges are inviting themselves to serve as policy makers who supervise foreign affairs, and where that impulse stops nobody knows.

The panel notes repeatedly that the Justice Department submitted “no evidence that any alien from any of the countries named in the order has ever perpetrated a terrorist attack,” as if the job of judges is to second-guess the executive branch. Yet last year the Department of Homeland Security reported that some 60 individuals born in the seven countries on Mr. Trump’s list have been convicted of domestic terror-related crimes since 9/11. That’s partly why Congress and President Obama singled the countries out for increased visa scrutiny.

But Justice didn’t cite these figures at oral arguments, probably because the Administration’s appeal has been as rushed and slipshod as the order itself. The secret and ad hoc drafting of the new policy by aides Stephen Bannon and Stephen Miller, with no public explanation and an incompetent rollout, has created an opening that willful judges can use to exceed their powers.

They have the same advice for Trump that Krauthammer had - withdraw the order and focus on crafting the vetting procedures.

The best option for Mr. Trump is to scrap the order and trust Mr. Kelly to do refugee vetting, but if the President insists on a new order than at least run it through extreme vetting. Consult with Congress and security experts, and make sure the attorneys lock down a legal and constitutional replacement.

The alternative is a possible bloodbath at the High Court. The best Mr. Trump can hope for is a 4-4 split that would uphold the Ninth Circuit ruling. But Justice Anthony Kennedy’s opinion and human-rights jurisprudence are implicated via Boumediene, and a 5-3 defeat is more likely, perhaps worse if Mr. Trump keeps denouncing the judiciary.

Presidents who tee themselves up as the mad Twitter king are rarely saved by judicial modesty. The Ninth Circuit ruling could be a fresh start for Mr. Trump to correct a mistake and then earn a national-security victory, if he’ll take it.

CNN anchor Chris Cuomo said Thursday that when President Trump refers to his network as "fake news," it's the same thing for reporters as the N-word is for black people.

"I see being called 'fake news' as the equivalent of the N-word for journalists, the equivalent of calling an Italian any of the ugly words that people have for that ethnicity," Cuomo said on SiriusXM. "That's what fake news is to a journalist."

But the most important thing from yesterday was Duke defeating UNC. That's makes me very happy.

The Duke students have long camped out for weeks ahead of time to be able to get in to see the UNC game. My daughters both did it when they were there. My younger daughter spent time from December 26 to March in one of the lead tents for several years. Unfortunately, her time at Duke coincided with Tyler Hansborough's time at UNC and Duke lost each of those four home matches. So this is sweet revenge for all those defeats. And now the demand for tent spots has so increased that those in charge of tenting in K-ville have come up with the most Dukie-thing imaginable to figure out which students will get the privilege to be in the lead tents - a test on the Duke team trivia.

The fans with the best seats on Thursday will only be there because they aced a test first. They were the students who knew the most about Duke basketball.

“I studied more for that test than I do for tests in general,” said Sam Klein, a sophomore political-science major. “I just dropped everything and studied Duke basketball.”

This was necessary to begin with because of the byzantine system that decides which students get into the annual Duke vs. UNC rivalry game. Admission is determined on a first-come, first-serve basis. And the first come absurdly early.

It has been that way since rabid basketball fans in 1986 pitched tents outside Cameron and named their colony after Duke’s young coach. They called it Krzyzewskiville.

As the tent village has expanded—its population is now in the thousands—it has become more bureaucratic. It’s governed by students known as “line monitors” who oversee a K-ville constitution that is subject to amendments every year. This year, the official tenting period began on Jan. 11, at which point K-ville’s laws required two people be present at all times and 10 members to sleep in the tent during the night hours of 11 p.m. to 7 a.m. during the week and 2:30 a.m. to 7 a.m. on the weekend. The weekend is Wednesday through Saturday.

The early timing for the UNC game this season meant a short tenting season: only 21 days in the cold. And hours after K-ville registration opened, about 160 groups with as many as 12 students in each group entered for the first 70 tenting spots. That amounted to roughly 30% of Duke’s undergraduate population.

This was too many people. The line monitors needed some kind of solution. They had to figure out the fairest way to measure fandom.

“We knew we couldn’t do a lottery, because UNC does a lottery,” said Delaney King, a Duke senior and head line monitor. “K-ville is a meritocracy.”

They settled on a trivia contest. One student spent his winter break writing the exam, a fill-in-the-blank test with 37 questions and sub-questions, and the line monitors were careful about security. Only five people saw the test before it was administered out of fears it would leak.

The students crammed for the test, but that was only the start. Those who scored 77% or higher then took a follow-up exam on Duke's basketball history in order to figure out the order of the tents. These are really tough tests. See how you would do on the first test and the final exam.